THE STATE OF OHIO, APPELLEE, v. SHEPPARD, APPELLANT.
[Cite as State v. Sheppard (1998), ___ Ohio St.3d ___.]
Criminal law — Aggravated murder — Death penalty upheld, when.
(No. 97-1474 — Submitted September 15, 1998 — Decided December 30, 1998.)
APPEAL from the Court of Appeals for Hamilton County, Nos. C-950402
and C-950744.
On August 27, 1994, Bobby T. Sheppard, defendant-appellant, was indicted
for the August 19, 1994 aggravated robbery and murder of fifty-six-year-old
Dennis Willhide.
Willhide owned the C & D Drive-thru beverage store, located in Cincinnati.
On August 19, 1994, Willhide and an employee, Darren Cromwell, were working
at the store. Approximately one-half hour before closing time, appellant and his
fourteen-year-old accomplice, Antwan (Cory) Little, ran into the front entrance.
Appellant wore dark clothing and a dark mask and had a gun. Little wore a white
t-shirt pulled over his head. Little went to the cash register and tried to open it.
Appellant grabbed Willhide and forced him down to the floor by the cash register.
Little removed the money from the register then ran out the door. Appellant
remained a few seconds longer and fired a single gunshot to the back of Willhide’s
head. He, too, then ran out the exit door.
In the meantime, Cromwell had escaped out the back door. He ran down the
street and tried to flag down some cars. He managed to stop a taxicab. He entered
the cab and asked the driver to call the police. The driver called his dispatcher and
drove Cromwell back to the drive-through. While in the cab, Cromwell heard one
gunshot and then saw appellant and Little run from the store.
Cromwell went back into the drive-through. He walked behind the register
and saw Willhide lying face down on the floor. He ordered people out of the store
(several cars had entered while Cromwell was gone). Cromwell called the police.
Police officer Daniel M. Nickum and his tracking dog, Luke, were
summoned to the scene. Luke was taken to the area where Cromwell had last
observed appellant and Little. He picked up their scent and followed it to
appellant’s nearby house. Nickum contacted more police cars, and appellant and
Little were immediately arrested. The residence was secured, and a search warrant
was obtained.
Inside appellant’s home, the police found $114 (three $20 bills, two $5 bills,
one $2 bill, and forty-one $1 bills) partly stuffed into a plastic bag and partly lying
loose on a kitchen closet floor. In a bedroom near the kitchen, the police
uncovered a dark blue hooded sweatshirt and a black mask under a bed.
The next day, with the assistance of Deangelo Graham, a fifteen-year-old
friend of appellant and Little, the police uncovered $390 in currency and a
chrome-plated .22 caliber semiautomatic pistol containing six bullets from a
neighbor’s bush next to appellant’s house.
The gun was test-fired and found to be operable. An expert testified that a
cartridge casing found on the drive-through floor had been fired from this weapon.
In addition, it was determined that the bullet retrieved from Willhide’s brain was
consistent with the bullets test-fired from the gun.
Appellant made several statements. Shortly after he was arrested and read
his Miranda rights, but before he was told the reason for the arrest, he announced
that he “didn’t do a robbery.” The second statement was made at the police
station. In this version, appellant explained that Little and he had gone to the
drive-through to purchase a forty-ounce bottle of beer. Willhide would not sell it
2
to him because he was too young. Willhide then pulled out “something.”
Appellant thought it might be a gun, so he shot Willhide once in the head as
Willhide turned away.
Appellant changed his story when challenged by police. He gave an
accurate account of what had occurred as evidenced on the surveillance tape. In
his confession, he said that he “did not mean to shoot” Willhide and that he wasn’t
“in [his] right mind.” But appellant admitted that he shot Willhide because he did
not want Willhide to identify him. Appellant gave police $89, hidden in his shoe,
which he said was proceeds from the robbery. Thus, together with the $114 from
appellant’s kitchen and the $390 from the neighbor’s bush, the police recovered a
total of $593.
The fifteen-year-old acquaintance, Deangelo Graham, related three
conversations that he had with appellant. The first conversation took place
approximately two to three months before August 19. The second occurred just a
few days before the robbery and murder. The last conversation happened just
minutes before the tragedy. Appellant related his intent to rob the drive-through
and a BP station. Appellant wondered what it would feel like to shoot someone.
In the second conversation, appellant stated that he might have to kill the man if
he did not cooperate. In the last conversation, appellant was convincing a
reluctant Little to go through with the plan. After the last conversation, Graham
saw appellant and Little walk into the store and saw appellant grab Willhide and
force him to the ground. Graham then walked away. Graham also described the
gun appellant had purchased just a few days before on the streets. The description
matched the gun offered into evidence.
The jury found appellant guilty as charged of aggravated robbery and
aggravated murder with gun specifications. He was also convicted of death
3
penalty specifications for murder to escape detection or apprehension for another
offense, R.C. 2929.04(A)(3), and murder in the course of a robbery, R.C.
2929.04(A)(7). The jury recommended death. The trial court sentenced appellant
to imprisonment for the aggravated robbery and the gun specifications, and to
death for the aggravated murder. The court of appeals affirmed.
The cause is now before this court upon an appeal as of right.
__________________
Joseph T. Deters, Hamilton County Prosecuting Attorney, and William E.
Breyer, Assistant Prosecuting Attorney, for appellee.
H. Fred Hoefle and Chuck R. Stidham, for appellant.
__________________
FRANCIS E. SWEENEY, SR., J. Appellant presents twenty-seven
propositions of law for our consideration. (See Appendix, infra.) We have
independently considered each proposition and have reviewed the death penalty
sentence for appropriateness and proportionality. However, we summarily reject
arguments that either have not been preserved, involve settled issues, or are cured
by our independent review. See, e.g., State v. Poindexter (1988), 36 Ohio St.3d 1,
520 N.E.2d 568, syllabus; State v. Henness (1997), 79 Ohio St.3d 53, 56, 679
N.E.2d 686, 691. Thus, we address only those issues that warrant discussion.
Accordingly, upon review, and for the following reasons, we uphold appellant’s
convictions and sentences, including the death sentence.
Juror Misconduct
In Proposition of Law No. 1, appellant argues that he is entitled to reversal
of the death sentence and imposition of a life sentence because of the misconduct
of one juror during the penalty phase. In Proposition of Law No. 2, appellant
4
contends that the trial court improperly considered a psychologist’s affidavit in
considering this issue. We reject both arguments.
After the jury had recommended the death penalty and had been discharged,
the state learned that one juror had independently contacted a psychologist for a
definition of paranoid schizophrenia. The contact was made before jury
deliberations in the penalty phase. The court conducted a brief hearing and
examined the juror. The juror testified that the psychologist gave him a “very,
boiled down, short” definition that “those kind of people [paranoid
schizophrenics] just are not really in touch with real[i]ty.” The juror testified that
this definition did not differ from what he had heard at trial, and it did not affect
the deliberations in any way. The juror did not share this information with other
jurors. Following appellant’s motion for a new trial based upon juror misconduct,
the state submitted an affidavit from the psychologist in question, stating that the
brief definition she had given to the juror was totally consistent with defense
testimony.
The juror’s decision to ask his psychologist friend for an outside opinion
constitutes juror misconduct. “Due process means a jury capable and willing to
decide the case solely on the evidence before it[.]” Smith v. Phillips (1982), 455
U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78, 86. “In a criminal case, any
private communication, contact, or tampering * * * with a juror during a trial
about the matter pending before the jury is * * * deemed presumptively
prejudicial[.]” Remmer v. United States (1954), 347 U.S. 227, 229, 74 S.Ct. 450,
451, 98 L.Ed. 654, 656. But “[t]he presumption is not conclusive.” Id. In fact,
Smith v. Phillips modified the concept of presumed prejudice and required the
party complaining about juror misconduct to prove prejudice. 455 U.S. at 215-
217, 102 S.Ct. at 945, 71 L.Ed.2d at 85-86. See United States v. Zelinka (C.A.6,
5
1988), 862 F.2d 92, 95; United States v. Sylvester (C.A.5, 1998), 143 F.3d 923,
933-934.
Additionally, Ohio courts have a long-standing rule “not [to] reverse a
judgment because of the misconduct of a juror unless prejudice to the complaining
party is shown.” State v. Hipkins (1982), 69 Ohio St.2d 80, 83, 23 O.O.3d 123,
125, 430 N.E.2d 943, 946. Accord State v. Keith (1997), 79 Ohio St.3d 514, 526,
684 N.E.2d 47, 60. The defense must establish that an outside communication
“biased the juror.” Id., citing State v. Phillips (1995), 74 Ohio St.3d 72, 88-89,
656 N.E.2d 643, 661. Under Crim.R. 33(A)(2), juror misconduct must materially
affect an accused’s substantial rights to justify a new trial. See, also, R.C.
2945.79(B).
Here the trial court determined that appellant suffered no harm or prejudice
as a result of the juror’s brief conversation with the psychologist. A court may
determine that a juror’s impartiality has remained unaffected based upon that
juror’s testimony. Smith v. Phillips, 455 U.S. at 215, 102 S.Ct. at 945, 71 L.Ed.2d
at 85. In fact, the juror’s brief conversation clearly did not prejudice appellant
because the psychologist’s comments reinforced expert defense testimony. Thus,
if the juror was influenced at all, he could have been influenced only in appellant’s
favor, and the other jurors, unaware of the conversation, could not have been
affected at all. Accordingly, appellant has not established that any prejudice
resulted from this juror misconduct. Crim.R. 33(A)(2); Keith, 79 Ohio St.3d at
526, 684 N.E.2d at 60; Hipkins, 69 Ohio St.2d at 83, 23 O.O.3d at 125, 430 N.E.2d
at 946.
In Proposition of Law No. 2, appellant argues that the psychologist’s
affidavit cannot be considered under Evid.R. 606(B). Evid.R. 606(B) concerns
limits on evidence about a jury’s deliberations. The rule restricts a juror’s
6
competence to testify about “any matter or statement occurring during the course
of the jury’s deliberations or to the effect of anything upon his or any other juror’s
mind or emotions as influencing him” with respect to the verdict “or concerning
his mental processes in connection therewith.” However, the rule permits a juror
to testify regarding extraneous prejudicial information or improper outside
influence, but only after some outside evidence (evidence aliunde) of that act or
event has been presented.
Appellant argues that the affidavit was not admissible under Evid.R. 606(B)
because the improper contact did not occur during deliberations. But the rule
makes no such requirement. Outside evidence on improper influence is admissible
without regard to when the influence occurred.
In this case, the trial court properly conducted a hearing and permitted the
juror to testify. Evid.R. 606(B) recognizes a juror’s competence to testify about
any outside influence “after some outside evidence of that act or event has been
presented.” Trial courts are given broad discretion in dealing with outside
contacts. Keith, 79 Ohio St.3d at 526-527, 684 N.E.2d at 60; Phillips, 74 Ohio
St.3d at 89, 656 N.E.2d at 661.
Jury Selection Issues
Batson claims. In Proposition of Law No. 21, appellant contends that the
prosecution peremptorily excused jurors on the basis of their race. Batson v.
Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, held that the
Fourteenth Amendment’s Equal Protection Clause precludes purposeful
discrimination by the state in the exercise of its peremptory challenges so as to
exclude members of minority groups from petit juries. See, also, State v.
Hernandez (1992), 63 Ohio St.3d 577, 581, 589 N.E.2d 1310, 1313. If the
7
defendant makes a prima facie case of discrimination, the state must provide a
neutral explanation. Id. at 582, 589 N.E.2d at 1313.
Appellant claims that the state’s peremptory challenges against two jurors
were racially motivated. Yet, contrary to this claim, the facts and any other
relevant circumstances did not establish a prima facie case because they did not
raise an inference that the prosecutor used the challenges for racial reasons. See
id. at 582, 589 N.E.2d at 1313. In fact, one African-American replaced a white
juror challenged by the state. Additionally, when these challenges were
questioned by the defense on Batson grounds, the state explained the two
questioned challenges. The state asserted that it had excused juror number one
because she did not think that she could sign a death verdict. The state excused
juror number thirty-two because of her death penalty views and because she was a
friend of accomplice Little’s family.
Because of the state’s race-neutral explanations, the trial court was not
required to interfere with the state’s peremptory challenges. Cf. State v. Moore
(1998), 81 Ohio St.3d 22, 28-29, 689 N.E.2d 1, 9-10. Appellant’s Batson claims
lack merit.
Denial of challenge for cause. In Proposition of Law No. 22, appellant
contends that the trial court improperly denied his challenge for cause of
prospective juror Matthews. Matthews had formerly lived in the neighborhood
where appellant lived and the murder occurred. Matthews was acquainted with
the victim, had shopped in the C & D Drive-thru a few times, and had seen
Sheppard around but did not know him. Nonetheless, Matthews assured the trial
court that he would be fair and impartial and would decide the issues based upon
the facts. Matthews never sat as a juror because of a peremptory challenge by
appellant.
8
Fairness requires impartial, indifferent jurors. Yet jurors need not be totally
ignorant of the facts and issues involved. Murphy v. Florida (1975), 421 U.S.
794, 799-800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594-595. Whether a
prospective juror knew the victim of an offense or had previously seen the accused
is not, per se, a basis for dismissal for cause. See Crim.R. 24(B). The trial court
has discretion in determining a juror’s ability to be impartial. State v. Williams
(1983), 6 Ohio St.3d 281, 288, 6 OBR 345, 351, 452 N.E.2d 1323, 1331.
Here, caution suggests sustaining the challenge, but we find that the trial
court’s failure to do so was not an abuse of discretion. Matthews unequivocally
stated his intention to be impartial and decide the case only on the facts.
“[D]eference must be paid to the trial judge who sees and hears the juror.”
Wainwright, 469 U.S. at 426, 105 S.Ct. at 853, 83 L.Ed.2d at 853.
Trial Phase Issues
Admission of appellant’s pretrial statements. In Proposition of Law No.
12, appellant contends that his pretrial statement was inadmissible because police
never informed him that he was “capitally eligible” for the offense he committed.
However, police officers are not required to inform a suspect that he is potentially
eligible for a death sentence prior to obtaining a valid waiver of the right to
counsel. Garner, 74 Ohio St.3d at 60, 656 N.E.2d at 635. To impose such a
requirement would force the police to discuss penalties and would complicate
understanding of Miranda rights, neither of which makes sense. See, e.g., State v.
Carter (1995), 72 Ohio St.3d 545, 552, 651 N.E.2d 965, 973. This proposition
lacks merit.
Search of residence. In Proposition of Law No. 13, appellant makes a
generalized complaint about the search of his residence and the seizure of the
items found therein. However, contrary to appellant’s claims, the evidence shows
9
that police did not enter the residence until they had secured a warrant. Second,
neither appellant’s name nor the name of the owner of the house needed to be on
the warrant, since the warrant described exactly the place to be searched. 2
LaFave, Search and Seizure (3 Ed.1996), Section 3.1. Finally, adequate evidence
supported the issuance of the warrant. The affidavit states that police were
investigating a homicide/robbery at the C & D Drive-thru, that a witness saw two
males enter the drive-through, heard a gunshot, and observed them running away,
and that further investigation led the police to appellant’s home. When a warrant
has been issued, the duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that probable cause existed. This
determination is accorded great deference. State v. George (1989), 45 Ohio St.3d
325, 544 N.E.2d 640, paragraph two of the syllabus. We reject this proposition of
law.
Instruction on involuntary manslaughter. In Proposition of Law No. 14,
appellant argues that the trial court erred in refusing to instruct on the lesser
included offense of involuntary manslaughter. This issue has been discussed
many times in similar cases. State v. Raglin (1998), 83 Ohio St.3d 253, 257, 699
N.E.2d 482, 487. The rule is that “ ‘[e]ven though an offense may be statutorily
defined as a lesser included offense of another, a charge on such lesser included
offense is required only where the evidence presented at trial would reasonably
support both an acquittal on the crime charged and a conviction upon the lesser
included offense.’ ” Id. at 257, 699 N.E.2d at 488, quoting State v. Thomas
(1988), 40 Ohio St.3d 213, 533 N.E.2d 286, paragraph two of the syllabus. Here,
under any reasonable view of the evidence, appellant’s killing of Willhide was
purposeful, as the location of the victim’s gunshot wound could imply only a
10
purposeful killing. See State v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d
685.
In his pretrial confession, appellant said that he hadn’t entered the drive-
through with the intention of killing anyone. He said that after accomplice Little
left, “I just shot [Willhide].” When asked why, appellant said, “I don’t know. * *
* I [wasn’t] in my right mind[.] * * * I don’t know why I shot [him]; I [didn’t]
have no reason.” When asked if he shot him so Willhide could not identify him,
appellant replied, “Yeah. Yeah, [that’s] the main reason, but I * * * didn’t mean
to shoot [him].” When asked if the gun went off accidentally, appellant said “no”
and repeated, “I did not mean to shoot [him].” Later he said, “[Y]ou could say it
was accidentally but * * * I don’t know.” Thus, appellant’s pretrial statement
never explicitly claims that the killing was an accident but suggests instead that
the killing was not planned.
Moreover, the other facts and circumstances preclude any reasonable basis
for finding that the killing was not purposeful. Appellant’s shot, fired from close
range, went directly to the back of Willhide’s head, indicating appellant’s intent to
kill. Appellant’s semiautomatic handgun required a seven-pound pull to fire the
weapon. The video shows that Willhide was cooperative and did nothing to induce
panic or confusion in his killer, since he neither resisted nor struggled before he
was shot. Finally, even before the robbery, appellant had speculated with his
friends what it would be like to shoot someone.
Thus, no reasonable jury could have both rejected a finding of guilty on the
charged crime and returned a verdict of guilty on the lesser included offense of
involuntary manslaughter. We find that the trial court properly rejected
appellant’s request for an involuntary manslaughter instruction.
11
Sufficiency and weight of the evidence. In Proposition of Law No. 15,
appellant claims that the state failed to prove that he purposely killed Willhide. In
Proposition of Law No. 16, appellant argues that the verdict was against the
manifest weight of the evidence. We disagree. The evidence sufficiently and
overwhelmingly supported the finding that appellant purposely killed his victim.
Penalty Phase Issues
Exclusion of evidence. In Proposition of Law No. 3, appellant argues that
the trial court erred by denying the admission of mitigating evidence offered at the
penalty phase. The mitigation evidence excluded was an excerpt from a learned
treatise proffered to bolster the testimony of appellant’s expert witness, Dr. Jeffrey
Smalldon, a clinical psychologist.
R.C. 2929.04(C) grants wide latitude to the defendant in the presentation of
mitigating evidence during death penalty hearings. Also, hearsay rules cannot be
used to defeat the ends of justice. State v. Landrum (1990), 53 Ohio St.3d 107,
114, 559 N.E.2d 710, 720, citing Green v. Georgia (1979), 442 U.S. 95, 99 S.Ct.
2150, 60 L.Ed.2d 738. Yet the Rules of Evidence still apply to penalty hearings.
State v. Williams (1995), 73 Ohio St.3d 153, 159, 652 N.E.2d 721, 727-728; State
v. Jenkins (1984), 15 Ohio St.3d 164, 190, 15 OBR 311, 333, 473 N.E.2d 264,
289. This type of evidence is impermissible. See Piotrowski v. Corey Hosp.
(1961), 172 Ohio St. 61, 69, 15 O.O.2d 126, 130, 173 N.E.2d 355, 360; Stinson v.
England (1994), 69 Ohio St.3d 451, 457-458, 633 N.E.2d 532, 539.
However, the United States Supreme Court has carved out an exception to
evidentiary rules for mitigation evidence in extreme circumstances when its
exclusion would violate the Due Process Clause of the Fourteenth Amendment to
the United States Constitution. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60
L.Ed.2d 738.
12
In Green, the trial court was held to have wrongfully excluded, as hearsay,
testimony from a witness that a co-defendant (Moore) had confided to him that
Moore had killed the victim, shooting her twice after ordering Green to run an
errand. The Supreme Court reversed, holding that the evidence was highly
relevant to one of the mitigation factors. Here, the excluded evidence was
intended only to bolster a statement already made by Dr. Smalldon, that a
connection existed between head injuries and psychotic conditions. Moreover,
Smalldon himself did not accept the text as authoritative in all respects, although
he described it as “one of the most widely respected and most frequently cited
texts in this field.”
The book chapter excluded here does not compare in any way to the
testimony “highly relevant to a critical issue” excluded in Green v. Georgia. We
reject this proposition of law.
Prosecutorial misconduct. In Proposition of Law No. 4, appellant makes
several arguments. First, appellant cites State v. Gumm (1995), 73 Ohio St.3d 413,
653 N.E.2d 253, and State v. Wogenstahl (1996), 75 Ohio St.3d 344, 662 N.E.2d
311, and argues that the prosecutor is restricted from making certain comments on
the underlying facts of an aggravated murder. We disagree with appellant’s
analysis. Wogenstahl recognizes that evidence relating to the facts of the
aggravating circumstances must be considered in the penalty determination. Id. at
355, 662 N.E.2d at 321. Although, according to Wogenstahl, paragraph two of the
syllabus, prosecutors cannot argue that the nature and circumstances of an offense
are aggravating circumstances, the facts and circumstances of the offense must be
examined to determine whether they are mitigating. R.C. 2929.04(B). Thus, a
prosecutor may legitimately refer to the nature and circumstances of the offense,
both to refute any suggestion that they are mitigating and to explain why the
13
specified aggravating circumstance outweigh mitigating factors. State v. Combs
(1991), 62 Ohio St.3d 278, 283, 581 N.E.2d 1071, 1077.
Here, for the most part, the prosecutor’s sentencing argument was restrained
and straightforward and dealt reasonably with the facts of the crime. The two
speculative comments on what Willhide was thinking at the moment he was shot
were not so egregious as to constitute prejudicial error.
Although he overstated the evidence, the prosecutor did not commit
grievous error by asserting that appellant “conspired to rob other stores prior to
this robbery.” The guilt phase evidence did show that appellant had purchased a
firearm and had said that he planned to rob a BP station.
Appellant also contends that error occurred when the prosecutor was
permitted to replay the crime scene videotape during the penalty phase.
Undoubtedly, the tape served to emphasize the facts of the murder as well as the
facts of the aggravating circumstance. However, the video is an objective and
impartial depiction of exactly what occurred during the crime and of the
aggravating circumstance, and is a better witness than any other source. Both the
facts of the offense as well as those of the aggravating circumstance are relevant in
the weighing process. Gumm and Wogenstahl, supra.
More troublesome, however, is the prosecutor’s argument asserting that the
defense was underhanded by not entering a plea of not guilty by reason of
insanity. The appellant was free to enter whatever plea he wished and cannot be
chastised for doing so. Landrum, 53 Ohio St.3d at 110, 559 N.E.2d at 717. Also,
Dr. Smalldon’s testimony setting forth an R.C. 2929.04(B)(3) mitigating factor did
not justify an insanity plea, nor was that testimony admissible in the trial phase.
State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895, paragraph one of the
syllabus. Nonetheless, this court’s independent sentence assessment cures the
14
effect of this sentencing error. Landrum, 53 Ohio St.3d at 124-126, 559 N.E.2d at
729-730.
Independent Sentence Evaluation
Having discussed some and considered all of appellant’s propositions of
law, we now independently review the death sentence for appropriateness and
proportionality. We find that the two aggravating circumstances appellant was
found guilty of committing were proven beyond a reasonable doubt.
Appellant’s mother, Dolores Sheppard, and oldest sister, Alberta Sheppard,
testified in mitigation. They described appellant as a normal boy who grew up
with two sisters and two brothers in a poor but loving family. Appellant’s father
died when appellant was four years old. Because of physical illness and disability,
Dolores was unable to work, and the family struggled financially. Appellant was a
good student and was active in football and wrestling. After a September 1993
automobile accident, in which appellant suffered head injuries, his behavior
changed dramatically. His grades suffered, he lost interest in sports and school,
and he dropped out in his junior year. Because of his changed behavior, Dolores
tried to get him some assistance, but appellant refused it. Dolores asserted that
eight out of seventeen members of her mother’s family had mental problems.
Dolores’s brother, Darryl, was repeatedly hospitalized as a schizophrenic.
Gwendolyn Bradbury, a Butler County social worker, worked with the
family from 1981 until 1992, seeing them at least weekly until the family moved to
Hamilton County in 1992. Bradbury corroborated Dolores’s testimony as to the
family struggles and described the family as religious and regular churchgoers.
Bradbury thought appellant was a shy, reserved boy with good manners. After the
accident, he did not appear to be the same boy she knew growing up.
15
Dr. Jeffrey Smalldon, a clinical psychologist, performed a comprehensive
evaluation of appellant and concluded that he was a paranoid schizophrenic. Dr.
Smalldon based his conclusion on seven interviews with appellant over an eight-
month period, extensive psychological testing, discussions with family members,
and his review of appellant’s background. Dr. Smalldon found that appellant was
very withdrawn, was difficult to engage in conversation, and exhibited delusional
thinking and behavior. In his opinion, appellant was not faking mental illness,
since he was terrified of being seen as mentally ill like his Uncle Darryl. Dr.
Smalldon believed that the September 1993 automobile accident in which
appellant suffered minor head injuries may have precipitated the onset of this
latent mental illness.
Dr. Smalldon believed that the family history supports his diagnosis of
paranoid schizophrenia, which has a genetic component and frequently recurs in
families. Dolores has twice been hospitalized for serious depression, appellant’s
sister Alberta has been treated for serious depression, and his sister Bridgette is
autistic. Appellant’s Uncle Darryl was repeatedly hospitalized for paranoid
schizophrenia, a fact well documented. Dr. Smalldon testified that two great aunts
and a great uncle have also had extended psychiatric care and hospitalization, and
several first and second cousins have histories of mental problems. Dr. Smalldon
admitted that appellant’s family had relayed much of this family history to him, yet
he had reviewed some medical records.
In Dr. Smalldon’s view, appellant’s severe mental illness does not qualify
him for an insanity defense, but his illness would have substantially impaired his
reasoning, insight, and ability to conform his conduct to the law. Thus, in Dr.
Smalldon’s opinion, appellant’s mental illness substantially compromised his
ability to know that what he was doing was criminally wrong or to conform his
16
behavior to the law. Dr. Smalldon acknowledged that appellant had never been
treated for mental illness, but paranoid schizophrenia usually does not appear until
the late teens or early twenties. Finally, Dr. Smalldon did not find that appellant
had suffered from any physical or emotional abuse while growing up, although
appellant’s father’s death was a “very significant event.” Nor did Dr. Smalldon
feel that appellant had a history of drug or alcohol abuse, although he occasionally
used marijuana and drank.
According to Dr. Smalldon, symptoms of paranoid schizophrenia include
profound alienation from the environment and from other people, difficulty in
appreciating the sequence of events, searching for structure, feelings of wariness,
vulnerability, and helplessness, a decline in personal grooming, and a deep lack of
trust in others.
Sentence evaluation. The nature and circumstances of the offense offer no
mitigating features. Appellant’s deliberate murder of Willhide was unprovoked,
brutal, and tragic.
Appellant’s history, character and background offer minimal mitigating
features. Although appellant’s father died when he was four, and his mother
struggled with her own illnesses and limited financial resources, the family was
religious and a close, loving family. The family received help from a social
worker, and this social worker was extremely close to the family, visiting at least
weekly for more than ten years. Appellant was described as a well-behaved boy
with good manners. Generally he received good grades in school and was active
in school sports. Because the mother was concerned about bad influences, she
moved the family back to Cincinnati in 1992. We find that appellant’s family
background offers little by way of mitigation. See, e.g., State v. Wilson, 74 Ohio
St.3d at 400-401, 659 N.E.2d at 310.
17
Appellant’s age of eighteen also offers little mitigation. “At the time of the
murder, appellant was a man of full legal age. He was an adult with all of the
privileges and responsibilities of an adult.” State v. Slagle (1992), 65 Ohio St.3d
597, 613, 605 N.E.2d 916, 931. However, his lack of a significant criminal history
is entitled to some weight.
R.C. 2929.04(B)(3) sets forth the following mitigation factor: “[w]hether, at
the time of committing the offense, the offender, because of a mental disease or
defect, lacked substantial capacity to appreciate the criminality of his conduct or to
conform his conduct to the requirements of the law.” Dr. Smalldon believed that
the appellant, due to a mental disease or defect, lacked substantial capacity to
appreciate the criminality of his conduct or to conform it to the requirements of the
law. We give this opinion some weight.
However, weighing the evidence presented in mitigation against the two
aggravating circumstances, we find that the aggravating circumstances outweigh
the mitigating factors. We find this beyond a reasonable doubt.
Finally, we find the death penalty proportionate when compared with other
cases of felony murder during an aggravated robbery. See, e.g., State v. Raglin, 83
Ohio St.3d 253, 699 N.E.2d 482; State v. Hill, 73 Ohio St.3d 433, 653 N.E.2d 271;
State v. Benge (1996), 75 Ohio St.3d 136, 661 N.E.2d 1019.
We affirm appellant’s convictions and sentences, including the sentence of
death.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, PFEIFER, COOK and LUNDBERG STRATTON,
JJ., concur.
APPENDIX
18
“Proposition of Law No. 1: Where a juror, during the penalty phase of a
capital trial in which the defense offers expert testimony that the defendant suffers
from a mental disease or defect, contacts a nontestifying psychologist outside of
the court proceedings to acquire information with respect to the defense expert’s
diagnosis of the defendant, and thereafter votes with other jurors to impose the
death sentence on the defendant, the defendant’s constitutional rights to due
process, to a fair and impartial jury, and to be free from cruel and unusual
punishment have been violated, and he is entitled to be resentenced to life
imprisonment.”
“Proposition of Law No. 2: Evidence in the form of affidavits of a non-
testifying psychologist contacted by a juror during the penalty phase of a capital
prosecution is not evidence aliunde such as to permit the trial court, considering a
motion for new trial and/or to resentence the defendant, to inquire as to the effect
of such contact upon the deliberations of the errant juror, or any other juror.”
“Proposition of Law No. 3: At the penalty phase of an aggravated murder
prosecution, the trial court is required to extend considerable latitude to the
defense in the admission of evidence with respect to mitigation of the death
penalty, and where the trial court excludes relevant, probative evidence of
mitigation, by granting an objection which was never made, and which was
expressly disavowed by the prosecutor, and which evidence is proffered into the
record by the defense, the rights of the accused to due process of law under the
Fourteenth Amendment, and to be free from cruel and unusual punishment under
the Eighth Amendment, and under Art. I Secs. 9 and 16, O. Const., have been
violated, the death sentence imposed is unlawful and unconstitutional, and must be
reversed, and the accused resentenced to life imprisonment.”
19
“Proposition of Law No. 4: Egregious misconduct by the prosecutor in the
penalty phase of capital proceedings requires reversal, and where the prosecutor’s
final argument for death argues nonstatutory aggravating factors, argues ‘facts’
outside the evidence, attacks the relevance of evidence admitted by the court,
contains inflammatory remarks and invective against the accused and his counsel,
a death sentence based on a jury verdict following such arguments violates due
process and the Eighth Amendment [to] the United States Constitution, and their
counterparts in the Ohio Constitution.”
“Proposition of Law No. 5: Specifications under R.C. 2929.04(A)(3) and
(A)(7) are duplicative, and must be merged prior to sentencing proceedings, upon
motion of the accused. The failure of the trial court, sua sponte, to merge such
specifications constitutes a violation of the rights of the accused under the United
States Constitution and the Ohio Constitution as well where the death sentence is
imposed thereafter.”
“Proposition of Law No. 6: The power conferred by R.C. 2929.05 upon
appellate courts to review aggravating and mitigating factors, and to determine the
appropriateness of a given death sentence, is subordinate to the right of the
accused to trial by jury under Art. I Secs. 5 and 10 of the Ohio Constitution.”
“Proposition of Law No. 7: Unless it can fairly be held beyond a reasonable
doubt that penalty phase error in a capital trial had no effect upon the jury’s
sentencing verdict, appellate courts are rendered powerless by the right to trial by
jury set forth in the Ohio Constitution, Art. I Secs. 5 and 10, from purporting to
‘cure’ the error and to affirm the death sentence; any such affirmance violates the
right of the accused to trial by jury, and the death sentence must be vacated and set
aside.”
20
“Proposition of Law No. 8: The affirmance of a death sentence by an
appellate court which has reweighed the aggravating and mitigating factors absent
duplicative and improper aggravating circumstances originally considered and
weighed by the jury in recommending the death sentence, constitutes a violation of
the right of the accused under the Eighth Amendment to have the death sentence
imposed only after the proper procedures have been followed under the state
scheme for imposing the death sentence, and also constitutes a violation of the
right to due process of law in that such appellate reweighing abrogates the liberty
interest created by state law to jury participation in the capital sentencing process.”
“Proposition of Law No. 9: It is impermissible for a sentencer in a capital
case to weigh the nature and circumstances of the offense as an aggravating
circumstance, and to weigh as aggravating an aggravating circumstance which the
law requires to be merged with another such circumstance for sentencing
purposes, and, where a trial court considers, and weighs, both such improper
aggravators, the death sentence imposed violates the offender’s constitutional
rights under the Eighth and Fourteenth Amendments to the U.S. Constitution, and
Art. I Secs. 9 and 16 of the Ohio Constitution, and must be reversed.”
“Proposition of Law No. 10: Where the state fails to establish beyond a
reasonable doubt that aggravation outweighs mitigation beyond a reasonable
doubt, the death penalty is absolutely precluded, and the imposition of the death
sentence under such circumstances constitutes a violation of the offender’s
constitutional right to be free of cruel and unusual punishment and also his right to
due process of law.”
“Proposition of Law No. 11: Egregious prosecutorial misconduct during the
guilt phase of a capital prosecution prejudices the due process right of the accused
to a fair trial under the Fourteenth Amendment to the U.S. Constitution, and Art. I
21
Sec. 16 of the Ohio Constitution, requiring reversal of his conviction and a new
trial.”
“Proposition of Law No. 12: The admission of involuntary, incriminating
statements, or those given without a valid waiver of the suspect’s privilege against
self-incrimination, violates that privilege, guaranteed by the Fifth and Fourteenth
Amendments to the Constitution of the United States, and Art. I Sec. 10 of the
Ohio Constitution.”
“Proposition of Law No. 13: Where police enter a residence prior to the
issuance of a warrant, and where the warrant does not describe the premises as the
residence of the accused, who resides at that residence, nor does it connect the
accused with the offense, the search and resulting seizure violate the rights of the
accused under the Fourth and Fourteenth Amendment[s] to the United States
Constitution, and Art. I Sec. 4 of the Ohio Constitution, and a motion to suppress
the evidence seized therefrom should be granted.”
“Proposition of Law No. 14: Involuntary manslaughter is always a lesser
included offense of aggravated murder, and where the accused has denied a
purposeful killing, he is entitled by due process to an instruction on the lesser
offense, and denial of a proper request for an instruction on the lesser offense
violates the Due Process Clause of the U.S. and Ohio Constitutions, rendering the
conviction of capital murder unconstitutional, and the death sentence void.”
“Proposition of Law No. 15: The Due Process Clause of the Fourteenth
Amendment to the Constitution of the United States, and the Ohio Constitution
guarantee to the due course of law require the prosecution [to] prove each and
every element of a criminal offense beyond a reasonable doubt, and in the absence
of evidence sufficient to persuade a rational factfinder of each such element to that
22
degree, a conviction is based upon insufficient evidence, offends due process, and
must be reversed.”
“Proposition of Law No. 16: A conviction — and a death sentence — must
be reversed, and a new trial granted, where the conviction is contrary to the
manifest weight of the evidence.”
“Proposition of Law No. 17: The Ohio capital statutes, for purposes of
proportionality review, death sentences must be compared with all other cases
within the jurisdiction in which the death sentence was imposed, as well as those
capital cases in which it was not imposed. [Sic.]”
“Proposition of Law No. 18: The Ohio death penalty statutes are
unconstitutional, violating the Eighth Amendment proscription of cruel and
unusual punishments, the Fourteenth Amendment guarantees to due process of law
and to the equal protection of the laws, and also violating the concomitant
provisions of the Ohio Constitution.”
“[Subproposition of Law No. 18(A) ]: The death penalty is so totally
without penological justification that it results in the gratuitous infliction of
suffering, and that, consequently, there is no rational state interest served by the
ultimate sanction.”
“[Subproposition of Law No. 18(B) ]: Both locally, statewide and
nationally, the death penalty is inflicted disproportionately upon those who kill
whites as opposed to those who kill blacks, and even within Hamilton County, the
death penalty is selectively imposed, rendering the penalty as applied in Hamilton
County arbitrary and capricious on the one hand, and the product of racial
discrimination on the other.”
“[Subproposition of Law No. 18(C) ]: The use of the same operative fact to
first elevate what would be ‘ordinary’ murder to aggravated murder, and then to
23
capital, death-eligible aggravated murder permits the state (1) to obtain a death
sentence upon less proof in a felony murder case than in a case involving prior
calculation and design, although both crimes are ostensibl[y] equally culpable
under the Revised Code, and (2) fails to narrow the capital class to those
murderers for whom the death penalty is constitutionally appropriate.”
“[Subproposition of Law No. 18(D) ]: The requirement that a jury must
recommend death upon proof beyond a reasonable doubt that the aggravating
circumstances outweigh only to the slightest degree the mitigating circumstances
renders the Ohio capital statutes quasi-mandatory and permits the execution of an
offender even though the mitigating evidence falls just short of equipoise with the
aggravating factors, with the result that the risk of putting someone to death when
it is practically as likely as putting someone to death when it is practically as likely
as not that he deserves to live renders the Ohio capital process arbitrary and
capricious, and, in the absence of a requirement that, before death may be
imposed, aggravating factors must substantially outweigh mitigating factors,
unconstitutional.” (Emphasis sic.)
“[Subproposition of Law No. 18(E) ]: The Ohio capital statutes are
constitutionally inf[i]rm in that they do not permit the extension of mercy by the
jury even though aggravating factors may only slightly outweigh mitigating
factors.”
“[Subproposition of Law No. 18(F) ]: The provisions of Crim.R. 11(C)(3)
permitting a trial court to dismiss specifications upon a guilty plea only under the
nebulous and undefined concept ‘in the interests of justice’ (1) needlessly
encourage guilty pleas and the concomitant waiver of the right to jury, to
compulsory process and to confrontation and (2) reintroduce the possibility that
the death sentence will be imposed arbitrarily and capriciously.”
24
“[Subproposition of Law No. 18(G) ]: The Ohio capital sentencing scheme
is unconstitutional because it provides no standards for sentencing or review at
several significant stages of the process and consequently death sentences are
imposed, and reviewed, without sufficient statutory guidance to juries, trial courts
and reviewing courts to prevent the unconstitutional arbitrary and capricious
infliction of the death penalty.”
“[Subproposition of Law No. 18(H) ]: The decision of the Supreme Court
of Ohio in State v. Gumm and State v. Wogenstahl has rendered the Ohio capital
statutes unconstitutional in that they encourage, rather than prevent, the arbitrary
and capricious imposition of the penalty of death.”
“Proposition of Law No. 19: Prospective jurors who believe that the death
penalty should always, or ‘automatically’ be imposed if the accused is convicted
of capital murder must be excluded from the jury for cause, and the defense is
entitled to explore on voir dire examination the attitudes of prospective jurors
pertaining to the automatic imposition of the death sentence. The presence of even
one such juror on the panel renders the death sentence unconstitutional under the
Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution, and Art. I
Secs. 9, 10 and 16.”
“Proposition of Law No. 20: A death sentence recommended by a jury from
service on which one or more veniremen were excused because of their views
concerning capital punishment cannot stand unless it affirmatively appears on the
record that each such venire[man] excused for cause unequivocally indicates that
his scruples against capital punishment will automatically prevent him from
recommending the death penalty and/or that such views will render him unable to
return a verdict of guilty no matter what the evidence, and that he is prevented by
25
his scruples from following the instructions of the court and considering fairly the
imposition of the death sentence.”
“Proposition of Law No. 21: It is constitutionally impermissible under the
Equal Protection and Due Process Clauses of the Fourteenth Amendment to the
U.S. Constitution for the state, in a capital prosecution, to exclude from the jury
prospective jurors solely on the basis of their race.”
“Proposition of Law No. 22: Where a prospective juror in a capital case
lived in the neighborhood where the murder occurred, knew the victim and had
seen the accused around the area, and had coached football at a high school where
the accused had played football, there is an unacceptable risk that such juror
would bring to his deliberations information not brought out in the evidence.”
“Proposition of Law No. 23: Where the defense fails to move to merge
capital specifications which ought to be merged, such failure constitutes
constitutionally ineffective assistance of counsel, and, where the accused is
sentenced to death in reliance upon an improper aggravating circumstance as a
result, the accused’s Eighth Amendment rights are violated as well as his Sixth
Amendment right to effective assistance of counsel.”
“Proposition of Law No. 24: Where, during a criminal trial, there are
multiple instances of error, and the cumulative effect of such errors deprives the
accused of a fair trial and undermines the reliability of the conviction and the
sentence of death imposed upon a jury verdict, the rights of the accused to due
process and to be free from cruel and unusual punishment, under the Fourteenth
and Eighth Amendments, respectively, [to] the United States Constitution, and
their corollaries in the Ohio Constitution, have been violated, requiring reversal.”
“Proposition of Law No. 25: It is impermissible under the Eighth and
Fourteenth Amendments to the U.S. Constitution and Art. I Sec. 9 of the Ohio
26
Constitution for the trial court to instruct the jury that their verdict is merely a
recommendation, as such an instruction impermissibly attenuates the jury’s sense
of responsibility for its decision, and a death sentence imposed following such an
instruction is constitutionally infirm.”
“Proposition of Law No. 26: The increased need for reliability required in
capital cases by the Ohio and Federal Constitutions mandates the granting to the
defense [of] more than six peremptory challenges.”
“Proposition of Law No. 27: Where the trial court’s instructions at the
penalty phase of a capital prosecution are prejudicially erroneous, the death
sentence imposed based upon the jury’s death verdict violates the rights of the
accused under the Eighth and Fourteenth Amendments to the U.S. Constitution,
and their corollaries under the Ohio Constitution, and must be reversed, and the
offender sentenced to life imprisonment.”
27
State v. Sheppard
Court: Ohio Supreme Court
Date filed: 1998-12-30
Citations: 1998 Ohio 323, 84 Ohio St. 3d 230
Copy CitationsCombined Opinion